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THE 



PROTOCOL QUESTION, 

)RIGINALLY PUBLISHED IN THE NATIONAL INTLLIGENCER, 

AUGUST 18, 1849. 



rhe Protocol signed by Messrs. Sevier and Clifford with the Minister of 
eign Affairs of Mexico, on the 26th of May of last year, immediately before 
ratification of the Treaty of Peace by the President of that nation, has now 
ti before the public in this country for six months, during which it has been 
subject of discussions in both Houses of Congress, of Executive communica- 
s, and of diplomatic correspondence, in addition to innumerable articles in news- 
ers and reviews. Opinions seem, however, to be still far from uniform with 
)ect to it, and the utmost diversity of views may be observed among persons of 
jolitical parties as to the validity of the instrument, the character of its clauses, 

the position which our Government should assume in regard to it. 
^his diversity of opinion arises in a great measure from the fact, that neither 
Protocol nor the circumstances under which it was drawn up and signed have 
et been presented in a light sufficiently distinct to prevent very great misap- 
lensions, in the minds even of those who have most honestly endeavored to ar- 

at correct conclusions. The ignorant have been made the dupes of the de- 
ing, while the latter have been in general too much engaged in misleading others 
ave any time left for ascertaining the truth themselves. None but a Quixote 
d expect that any exposition of the truth would be admitted by those whose in- 
3ts or self-love are already engaged in the support of erroneous opinions on 
subject ; but only a small portion of our countrymen are embraced in this cate- 
', and the following statement of the facts and the principles of national law in- 
ed in them, may perhaps serve to produce among the greater and better por- 
a nearer approach to that uniformity of correct views and feelings which is so 
ntial, especially on matters calculated — as that in question seems to be — to affect 
lionor of our country and its standing among nations. 

7e commence with the origin and birth of the Protocol, which seems to have 
I most especially misunderstood, in consequence cheifly of the direct misstate 



2 ' ^ 

ments contained in the preamble of the instrument. The circumstances are briefly 
and exactly these : 

The Treaty of Peace between the United States and Mexico, signed at Guada- 
lupe Hidalgo, near the capital of the latter republic, on the 2d of February, 1848, con- 
tained several stipulations respecting the religion, or rather the ecclesiastic rights 
and privileges, of the inhabitants of the territories then ceded to the United States, 
as well as the validity of the grants of lands in those countries, the mode of pay- 
ment of the sums to be given to Mexico in return for them, and on other points, 
which our Senate refused to admit. Some of the clauses containing these stipu- 
lations were accordingly expunged, and others were considerably modified by that 
body ; and the treaty, thus amended, having been approved, was ratified by Pre- 
sident Polk on the 16th of March, and sent back to Mexico for approval and ratifica- 
tion, agreeably to the laws of that country. As, however, these amendments might 
occasion difficulties, and the much-desired re-establishment of peace be thus frus- 
trated or delayed, Mr. Ambrose H. !:"Evier, then a Senator from Arkansas, and 
Mr. Nathan Clifford, then Attorney General of the United States, were dispatched 
as Commissioners Plenipotentiary to Mexico, with instructions to explain the nature 
and reasons of the changes, and with powers to receive the ratifications of the Treaty 
of Peace, and to negotiate a new treaty on one of the points on which alterations 
were made. 

Before going further, it should be observed that the difference between powers 
and instructions is as great in diplomatic transactions as in those of ordinary legal 
proceedings. The instructions are given by the Secretary of State, or Minister of 
Foreign Affairs, for the direction of the Plenipotentiary in the use of his powers. 
He may or may not exhibit them to the party with which he is to treat, and he 
may depart from them on his own responsibility ; in which case, however, it is 
always a difficult and delicate matter for his Government to refuse to sanction his 
acts and engagements made in accordance with his powers. The powers, on the 
Other hand, must necessarily be exhibited to the other party as a warrant for the 
validity of the proceedings or promises of the Plenipotentiary ; and any engage- 
ments which he might make beyond the limits of those powers might be declared 
void by his Government without any difficulty or hesitation. 

Messrs. Sevier and Clifford were on this occasion furnished with a full power, 
dated March 18, 1848, to exchange the ratification of the Treaty of Peace, " in the 
form in which it has been amended by the Senate of the United States, for the 
like ratification on the part of the Mexican Government of the said treaty. ^^ They 
were also empowered, by a separate instrument, on the 22d of the same month, to 
negotiate and conclude with the Mexican Government " a treaty changing the mode 
of payment of the twelve millions of dollars stipulated to be paid by the Govern- 
ment of the United States to that of the Mexican Republic by the twelfth arti- 
cle of the treaty of Guadalupe Hidalgo, as it has been amended by the Senate of 
the United States, in any manner which by them may be deemed expedient ; the 
said treaty to be transmitted to the President of the United States for his ratifica- 
tion, by and with the advice and consent of the Senate thereof." Such were the 



powers of the Commissioners; such were all the powers given to them ; and the 
exact and specific nature of the duties thus committed to them forbids the slightest 
inference that they could have been authorized to go beyond those two objects. 

For their conduct in the exercise of these powers they were furnished with in- 
structions from the Hon. James Buchanan, our Secretary of State, than which no- 
thing could be more clear and explicit as to what they might do, and as to what they 
should on no account do ; and they moreover carried a letter from the Secretary 
to the Mexican Minister of Foreign Relations, exhibiting, in terms at once positive 
and conciliatory, the extent and effects of the several changes made by our Gov- 
ernment in the treaty. In their first instructions, dated March 18, they are told: 

"You are not sent to Mexico for the purpose of negotiating any new treaty, or of changing, 
in any particular, the ratified treaty which you will bear with you. None of the amendments 
adopted by the Senate can be rejected or modified, except by the authority of that body. Your 
whole duty will then consist in using every honorable effort to obtain from the Mexican Govern- 
ment a ratification of the treaty in the form in which it has been ratified by the Senate ; and this 
with the least practicable delay. For this purpose it may, and most probably will, become ne- 
cessary that you should explain to the Mexican Minister for Foreign Affairs, or to other authorized 
agents of the Mexican Government, the reasons which have influenced the Senate in adopting their 
several amendments to the treaty. This duty you will perforin as much as possible by personal 
conferences. Diplomatic notes are to be avoided, unless in case of necessity. These might lead 
to endless discussions and indefinite delay. Besides, they could not have any practical result, as 
your mission is confined to procuring a ratification from the Mexican Government of the treaty 
as it came from the Senate, and does not extend to the slightest modification in any of its provisions. 

As a provision for a contingency which might occur, the instructions continue 

thus : 

"Should you find it impossible, after exhausting every honorable effort for this purpose, to 
obtain a ratification from the President and Congress of Mexico of the treaty, as it has been amend- 
ed by the Senate, it may then become necessary for you, in conversation with the proper Mexican 
authorities, to express an opinion as to what portion of the Senate's amendments they might pro- 
bably be willing to yield for the sake of restoring peace between the two Republics." 

They were thus, in fine, limited to the verbal expression of opinions as to the 
amendments made by the Senate, from which that body might be disposed to yield, 
though they were " to insist strenuously upon the ratification of the treaty by the 
Mexican Government, just as it has been ratified by the Senate," until this object 
should have been found unattainable. 

By the second and last letter of instructions, respecting the exercise of the second 
power conferred on them — namely, for negotiating a new treaty as to the mode of 
payment of the money by the United States — they were not to conclude engage- 
ments on that point until the Mexican Government " shall have first ratified the 
original treaty, with all the amendments adopted by the Senate ;" and any treaty 
which they might thus conclude was to be ratified by Mexico, and sent to Wash- 
ington immediately for approval and ratification on our part. 

Messrs. Sevier and Clifford, with these powers and instructions, arrived at Que- 
retaro, then the seat of the Mexican Government, on the 25th of May, before which 
the treaty, as amended by our Government, had been approved by the Chamber of 
Deputies and the Senate of Mexico, as required by the constitution of that Repub- 
lic. On the following day several conferences were held between them and the 
Mexican Minister of State, in the course of which they verbally explained the alte- 
rations made in the treaty ; but they were induced, in defiance of the express recom- 



lendations of Mr. Buchanan, to consign those explanations to writing, in an instru- 
lent styled a Protocol, signed by themselves and the Mexican Minister of Foreign 
:elations, on the 26th of May, wherein it is declared that the explanations were 
ven by the Plenipotentiaries of the United States " with full powers pom their 
rovernment " to make them, and were accepted by the Mexican Government, 
hich, " with the understanding conveyed by them, would proceed to ratify the 
eaty of Guadalupe, as modified by the Senate and Government of the United 
tates." This Protocol was communicated to the Mexican Congress, which, how- 
irer, took no further action upon it than to order it to be placed among the archives ; 
id the President of that Republic, on the 30th of May, ratified the treaty, as ap- 
roved by the Congress, Avithout any notice whatsoever of the explanations of the 
lommissioners of the United States, or of the document in which they were re- 
orded. In conformity with the treaty, the first instalment of three millions of 
ollars was paid to the Mexican Government, in the city of Mexico, early in June, 
id the armies of the United States soon after evacuated all the places occupied 
y them within the limits of the Mexican territory. 

On the 6th of July following. President Polk sent to Congress, with his message 
ti this subject, copies of the treaty, and of portions of the correspondence re- 
tting to its ratification. Among the letters of Messrs. Sevier and Clifford thus 
Bnt, is one of the 30th of May, mentioning their conferences with the Mexican 
linisters, which " they say it was not thought necessary to recapitulate, as we en- 
lose a copy of the Protocol, which contains the substance of the conversations." 
^resident Polk, however, did not send a copy of this Protocol to either House of 
/ongress, nor make any allusion to it in his message; and it remained utterly un- 
:nown, m the United States at least, until the 3d of February, 1849, when a copy 
if it was submitted, by the Hon. Mr. Stephens, of Georgia, to the House of Rep- 
esentatives, which immediately called on the Executive for information on the 
ubject. The call was answered by a message from President Polk on the 8th, 
iccompanied by copies of Mr. Buchanan's instructions to the Commissioners, seve- 
al additional letters which passed between the Commissioners and the Mexican 
government, and " the memorandum of conversations embraced in the paper called 
I Protocol;'"' all of which, the President says, were not before communicated, 
' because they were not regarded as in any ivay material.'" 

The judgment of President Polk on this subject has not been confirmed by the 
people of the United States, who are almost unanimous in considering the Protocol* 
md the other papers communicated with this last mentioned message, as very 
' material.'' Some, indeed, whose opinions are considered as entitled to much re- 
spect, have regarded the Protocol as involving material changes in the Treaty of 
Peace, and even as tending to invalidate that compact; while few, if any, are dis- 
posed to admit as satisfactory the reasons of President Polk, or any other reasons, 
for withholding these papers from Congress. Several grave questions are indeed 
raised by this transaction, which President Polk thus assumed the responsibility of 
answering himself, without the concurrence of the legislative branch of our Govern- 



ment, empowered by the Constitution to sanction and to provide the means of 
executing our agreements with foreign nations. 

Before examining the contents of this Protocol, it will be proper to show the mean- 
ing and value of the term, which seems to have been wholly misunderstood by Pre- 
sident Polk, and by many other persons. 

Protocol is a word of Greek derivation, signifying the first glue ; and was ap- 
plied at Constantinople, under the Greek Emperors, to the formulas somewhat re- 
sembling our modern stamps, at the commencement of notarial documents, con- 
taining the name of the sovereign and the subject of the deed, &;c. inscribed on a 
slip of parchment, which was purchased from a public office and fastened by glue 
to the top of the sheet. The word was afterwards used to denote the first copy 
or official record of a deed, and such is its meaning at the present day in countries 
where the civil law prevails, and wherever it is mentioned in English law. In 
diplomacy its introduction is of comparatively recent date. It has not been found 
in the record of any negotiation anterior to the present century, or indeed to the 
Congress of Vienna, where it seems to have been first employed ; nor is it men- 
tioned in any of the older treatises on national law or diplomacy ; and it is exclu- 
sively confined to official statements of the proceedings of conferences between 
plenipotentiaries, which are in all cases signed by each and all of them, and is al- 
ways considered as authoritative. In these respects a Protocol differs wholly from 
z memorandum ox verbal note ^ which, whether drawn up by the plenipotentiaries 
singly or jointly, is not signed, and has no official value or authority, being merely 
intended to aid the memories of the parties. 

A Protocol is thus a serious and substantial record — a provisional convention or 
treaty — fixing the promises, offers, demands, and explanations advanced by each 
party in the negotiation, so that they cannot in good faith be withdrawn, without 
the assignment of satisfactory reasons ; and, as every negotiation is and must ne- 
cessarily be preceded by the exhibition of the powers of each Plenipotentiary, be- 
yond which he cannot contract an engagement, so of course the promises, offers, 
demands, and explanations made by him, whether recorded in a protocol or not, are 
of no value if they exceed the powers thus exhibited by them. 

This view of the nature and official value of a Protocol is confirmed by the prac- 
tice of all the most celebrated negotiations in which they have been employed. A 
most striking instance of the importance attached to the contents of such a document 
is aii'orded in the negotiation at London on the Oregon territory in 1827, between 
our Minister Plenipotentiary Mr. Gallatin and the Commissioners of the British 
Government ; in the course of which long discussions took place, and long and 
labored memorials were presented on each side, with regard to the right claimed 
by the British Plenipotentiaries to insert, in the Protocol containing the minute of 
the agreement for extending the period of the joint occupation of the territory, a 
declaration of their views of the nature of that occupation. Mr. Gallatin positively 
refused to admit any such addition to the Protocol, " as it appeared to him tanta- 
mount to the insertion in the convention of the same provisions'^ which the Uni- 
ted States had already refused to admit. No one can doubt the propriety of Mr. 



6 

Gallatin's refusal in this case. The agreement made in the conference was entered 
on the Protocol, as a record of the proposition which was to be submitted to each 
Government for its approval and ratification as a treaty ; it was drawn up in the 
most general terms, and if the British Commissioners had been allowed to inscribe 
and leave on the Protocol their interpretation of the meaning and extent of those 
terms, which was entirely in favor of Great Britain, the United States, after its 
ratification of the agreement, of which the Protocol was the sole official record, would 
have been as fully bound to act according to the interpretation as if it had been in- 
serted word for word in the treaty. In negotiations between plenipotentiaries of 
Governments in which treaties are made and executed by the will of the Sovereign 
alone, the Protocols of conferences may, on being signed by the parties, become 
in effect actual treaties; and this was the case not only at Vienna in 1824, but 
during the conferences of the five great Powers of Europe at London on the Bel 
gian question in 1831, where the Protocol of each conference embraced resolutions 
which were immediately carried into execution. Messrs. Sevier and Clifford were 
neither plenipotentiaries of an absolute Sovereign, nor were they in the same posi- 
tion in which Mr. Gallatin stood in 1827. They were sent simply to exchange the 
ratifications of a treaty already completed on our part, and were authorized merely 
to give explanations on such points as the Mexican Government might possibly 
misapprehend. They were to give explanations, not interpretations j for the 
treaty was clear and unambiguous in all the points to which our amendments 
related. 

After these observations as to the nature of the powers and duties of our Com- 
missioners, we proceed to examine the contents and character of the document 
which they assumed the responsibility of signing at Queretaro on the 26th of May, 
1848. This document is styled — 

*' Protocol of the conference previous to the ratification and exchange of the Treaty of Peace, 
between Ambrose H. Sevier and Nathan Clifford, commissioned as Ministers Plenipotentiary on 
the part of the United States of America, and Don Luis de la Rosa, Minister of Foreign and Inter- 
nal Affairs of the Mexican Republic." 

"In the city of Queretaro, on the 25th of the month of May, 1848, at a conference between 
their excellencies Nathan Clifford and Ambrose H. Sevier, Commissioners of the United States of 
America, with full powers from their Government to make to the Mexican republic suitable ex- 
planations in regard to the amendments which the Senate and Government of the said United States 
have made in the Treaty of Peace, friendship, limits, and definitive settlement between the two re- 
publics, signed in the city of Gaudalupe Hidalgo on the 2d day of February of the present year, and 
his excellency Don Luis de la Rosa, Minister of Foreign Affairs of the republic of Mexico, it was 
agreed, after adequate conversation respecting the changes alluded to, to record in the present Proto- 
col the following explanations, which their aforesaid excellencies the Commissioners gave in the 
name of iheir Government, and in fulfilment of the commission conferred upon them near the Mexi- 
can lepublic." 

It is thus declared that the Commissioners of the United States appeared at the 
conferences " with full powers from their Government, to make to the Mexican re- 
public suitable explanations in regard to the amendments," &,c., and that they gave 
those explanations " in the name of their Government, and in fulfilment of the com- 
mission conferred upon them near the Mexican Government." That no such pow- 
ers or commission were ever directly conferred upon Messrs. Sevier and Clifford, 
has been already shown ; and it would be difficult, if possible, for the most inge- 



nious interpreter to extract from Mr. Buchanan's instructions to those gentlemen, 
any authority whatsoever for making the explanations contained in the three articles of 
the Protocol. The words " Senate and Government of the United States" — separat- 
ing the Senate from the Government — appear somewhat strange in a document 
signed by gentlemen who had filled and continued to fill high and important places 
in the republic. They might have been regarded as the results of inadvertency, in 
rendering the word Gobierno in the Spanish version, which is confined in its signi- 
fication to the Executive, by the English word Government, embracing among us 
all the branches of the political powers of the republic ; but the other articles of the 
Protocol afford strong indication that the Commissioners regarded the Government 
as resting, quo ad hoc at least, in the hands of the Executive. 

The explanations thus made on such questionable authority by our Commission- 
ers, relate to three of the articles of the treaty ; for one of which a new article was 
substituted by our Senate, while another was wholly expunged, and the third was 
deprived of one of its clauses. 

The ninth article of the treaty, as it stood when submitted to our Senate, provided, 
first, that the people of the countries ceded to the United States should enjoy their 
liberty, property, and civil rights," as vested in them according to the Mexican 
laws" until they should have been admitted to all the privileges of citizens of the 
Union, which was to be done as soon as the constitution would admit : thus prohibit- 
ing the extension of the laws of the United States over those countries, until the 
people found inhabiting them should have been admitted as citizens of our republic. 
This article, in the next place, secured, in the most ample manner, to all ecclesias- 
tics and religious corporations or communities, the enjoyment of all their proper- 
ty, individual or corporate, including all temples, houses and edifices devoted to 
religious, charitable, or beneficent purposes, and all the property destined to their 
support ; none of which property could ever be considered as belonging to the 
American Government, or as subject to be disposed ot or diverted to other uses : thus 
establishing in the countries ceded, exceptions and exemptions in favor of the 
Roman Catholic Church, not enjoyed by any other body or individuals in the Union 
whatsoever. The property thus designated was in fact placed beyond the reach of 
our laws, as it could not be seized for debt, and probably could not be taxed, with- 
out infraction of the engagement, which was in every respect equivalent to the es- 
tablishment of the odious tenure by mortmain, so long abolished in England, and 
nearly all other civilized countries. The last clause of this article also assured the 
most perfect freedom of communication between the Roman Catholics residing in 
the ceded territories and their respective ecclesiastical authorities, even though the lat- 
ter should continue to reside in Mexico, until a new demarcation of ecclesiastical dis- 
tricts should have been made. The nature of these communications is not specified, 
nor the power by which such a new demarcation of ecclesiastical districts might be 
made. There can, however, be no reason for supposing that the Archbishop of 
Mexico, or the Bishops of Durango, Monterey, or Guadalaxara, in whose dioceses 
the ceded countries are situated, would be inclined in any way, or at any time 
to loosen the bonds by which they held the Roman Catholic inhabitants of those 



8 

countries in complete subjection, or that they would fail to employ their influence 
to the advantage of Mexico or to the detriment of the United States, if there should 
be occasion. If the communications were to be confined to spiritual matters only, 
the engagement in question would be superfluous, as no authority in the United 
States can restrain them ; but as they might, and in all probability would, be em- 
ployed for political objects also, it would have been egregious folly, or worse, on our 
part, to have engaged to protect them. 

Under these circumstances, our Senate very properly rejected the whole of the 
original ninth article, and substituted for it one nearly in the terms of the articles 
on the same points in the Louisiana and Florida treaties, securing to the people of 
the countries thus acquired by us the free enjoyment of their liberty and proper- 
ty, and the exercise of their religion, without restriction, until they should be ad- 
mitted to all the rights of citizens of the republic, according to the principles of 
the constitution ; with the material difference, however, that the period of their ad- 
mission to citizenship is in the present case made entirely dependant upon the 
judgmentof Congress, and nothing is said, even by implication, as to the admission 
3f any of the countries ceded as States in the Union. This was all that was ne- 
cessary, all that should have been expected, and all that could have been done 
jnder our constitution. Messrs. Sevier and Cliff()rd nevertheless assented to the 
nsertion of the following passage in the Protocol signed by them, which completely 
•estores all that was expunged by the Senate : 

" 1st. The American Government, by suppressing the ninth article of the treaty of Guadalupe, 
ind substituting the third article of the treaty of Louisiana, did not intend to diminish in any way 
vhat was agreed upon by the aforesaid article ninth in favor of the inhabitants of the territories 
eded by Mexico. Its understanding is, that all of that agreement is contained in the third article 
if the treaty of Louisiana. Li consequence, all the privileges and guaranties, civil, political, and 
eligious, which would have been possessed by the inhabitants of the ceded territories, if the ninth 
rticle ot the treaty had been retained, will be enjoyed by them, without any difference, under the 
rtitle which has been substituted." 

The Commissioners thus declare that " the American Government," exclusive 
ff course, of the Senate, understands the third article of the Louisiana treaty, which 
s nearly identical with the ninth article of the Treaty of Peace with Mexico ap- 
proved by the Senate, as containing all the stipulations embraced in the ninth arti- 
le rejected by that body ; and they pledge the faith of " the American Government" 
» secure to the people of the territories ceded to the United States all the privi- 
sges and guaranties, civil, political, and religious, embraced in the rejected article, 
without any difference or diminution whatever, the decision of the Senate to the 
ontrary notwithstanding. That they had no direct power to make this pledge, 
t is scarcely necessary to repeat ; and their only authority for any explanations 
n these points is to be found in the letters of Mr. Buchanan to the Mexican Minis- 
3r of Foreign Affairs, and to themselves. In these letters, our Secretary of State 
oes indeed express as his own opinion, and as that of the President, that the origi- 
al ninth article and the article substituted for it by the Senate are " substantially" 
tie same ; and that the Mexican Government ought to be content with a security 
i^hich has proved satisfactory to the Governments of France and Spain, and to 
ie people of the countries ceded by those Powers to the United States ; and he 



refers the Commissioners on this and all other points to their " own intimate and 
personal knowledge of all the proceedings of the Senate on the treaty," which would 
enable them " promptly to furnish every explanation which may be required." 
The debates of the Senate on the treaty have not yet been made public ; but it 
seems scarcely probable that this body would have taken upon itself a responsibili- 
ty so serious as the rejection of an article in a treaty which was to terminate a war, 
while considering the stipulations contained in it as " substantially" the same with 
those of the article substituted by itself. The explanations which the Commis- 
sioners were instructed to make on this head were to be of such a nature as to re- 
move from the Mexican Government any apprehensions that the people of the coun- 
tries ceded under the treaty would be deprived of any rights which had been en- 
joyed by the people of the other countries, acquired by the United States in a simi- 
lar way ; and any assurances which they made beyond this liberty and limitation, 
were wholly gratuitous on their parts. They were sent to obtain the ratifica- 
tion of the treaty on this as on all other points, ^'just as it had been ratified by the 
Senate,'^ in the same sense as well as in the same words, and in none other. 

The next explanation made by our Commissioners in the Protocol related to the 
tenth article of the original treaty, which was completely expunged by the Senate. 
By it all grants of lands made by Mexico in the ceded territories shall be respect- 
ed as valid, to the same extent as if those territories had remained in the posses- 
sion of Mexico, with the understanding that no such grants have been made in 
Texas since the 2d of March, 1836, (the date of the declaration of the indepen- 
dence of that country,) or in the other territories ceded since the 13th of May, 1846, 
(the date of the declaration of war by the United States against Mexico ;) and the 
grantees who had been put in possession of their lands, but had been prevented' 
by the circumstances arising from the troubles between Texas and Mexico, from ful- 
filling all the conditions of their grants, shall be obliged (that is, entitled) to fulfil 
them within the periods assigned in their respective grants, to be counted from the 
exchange of the ratifications of the present Treaty of Peace. This article was 
nearly identical in its provisions with the eighth article of the treaty by which 
Spain ceded Florida to the United States. The grants of land here in question 
were nearly ail made by the Mexican Government, or under its authority, to per- 
sons styled empresarios, or contractors, who engaged, within a certain number of 
years, to establish a certain number of colonists on the lands, and to perform cer- 
tain other acts with regard to them, upon the completion of which, at or before 
the expiration of the time allowed, their right to the lands became perfect and 
indefeasible. 

Upon this article Mr. Buchanan speaks thus clearly and forcibly in his instruc- 
tions to the Commissioners : 

*• Neither the President nor the Senate of the United States can ever consent to ratify any treaty 
containing the tenth article of ihe treaty of Guadalupe Hidalgo, in favor of grantees of land in Texas 
or elsewhere. The Government of the United States do not possess the power to carry such an 
article into execution, and, if they did, it would be highly unjust and inexpedient. Should the 
Mexican Government persist in retaining this article, then all prospect of immediate peace is ended, 
and of this you may give them an absolute assurance." 



10 

Still stronger are the expressions of our Secretary of State, in his letter to the 
Mexican Minister, where he says : 

"It is truly unaccountable how this article should have found a place in the treaty. That por- 
tion of it in regard to lands in Texas did not receive a single vote in the Senate. If it were adopted 
it would be a mere nullity on the face of the treaty, and the judges of our courts would be com- 
pelled to disregard it." **♦***•** 

"These Mexican grants, it is understood, cover nearly the whole seacoast and a large portion of 
the interior of Texas. They embrace thriving villages and a great number of cultivated farms, 
the proprietors of which have acquired them honestly by purchase from the State of Texas. These 
proprietors are now dwelling in peace and security. To revive dead titles and suffer the inhabi- 
tants of Texas to be ejected under them from their possessions, would be an act of fligrant injustice, 
if not wanton cruelty. Fortunately this Government possesses no power to adopt such a pro- 
ceeding." 

It would be needless to produce additional reasons to show that the Commissioners 
were specially prohibited by their instructions from any explanations on this point, 
further than as they might tend to impress upon the Mexican Government the 
determination, on our part, not to concede any thing ; and Messrs. Sevier and 
Clifford should have limited themselves to a reference to the eighth article of the 
treaty, by which all Mexicans then established in the territories ceded to the Uni- 
ted States, or in those remaining to Mexico, are secured in the possession of their 
property, and of all the rights and guaranties connected with it, as amply as if it 
belonged to citizens of the United States. They, however, thought proper to 
declare, in the second article of the Protocol : 

" 2d. The American Government, by suppressing the tenth article of the treaty of Gaudalupe, did 
not, in any way, intend to annul the grants of lands made by Mexico in the ceded territories. These 
grants, notwithstanding the suppression of this article of the treaty, preserve the legal value which 
they may possess, and the grantees may cause their legitimate titles to be acknowledged before the 
American tribunals. 

"Conformably to the law of the United States, legitimate titles to every description of property, 
personal and real, existing in the ceded territories, are those which are legitimate titles under the 
Mexican law in California and New Mexico up to the 13ih of May, 1846, and in Texas up to the 
2d of March, 1836." 

This declaration tends, as clearly as that which preceded it, to the restoration of 
the article expunged by our Senate ; and it may, perhaps, be interpreted as going 
further to the prejudice of the United States. The grants of lands by the Mexican 
Government to empresarios usually allowed them six years, and in many cases 
double that time, to complete the conditions ; and very few of the grants of lands 
in Texas had been rendered thus complete and indefeasible before that country 
became independent of Mexico. Yet all these grants were legitimate titles, under 
the Mexican law, up to the period last mentioned, March 2, 1836; and, according to 
the Protocol, they are regarded by our law as legitimate, and the grantees may have 
them acknowledged as such before the American courts. That is to say, the Ame- 
rican courts must either acknowledge them as already valid, or allow the claimants 
time to fulfil their conditions. This was done with regard to the grants in Florida? 
which were thus protected by the Treaty of Washington ; and no other alternative 
is left, if our courts are obliged to admit as legitimate the grants which were legiti- 
mate under the Mexican law at the date of the independence of Texas. This 
is certainly impracticable with regard to lands in Texas. The empresario grants in 
that country were among the principal grounds of discontent which led to the 
separation from Mexico. They have always been repudiated by Texas, and the 



11 

United States cannot, either in policy or in honor, admit their revival. The case 
maybe somewhat different with regard to grants in California or New Mexico; 
but our Senate was equally unwilling to bind the United States to admit them, for 
the same reasons which had caused their rejection by Texas ; and the claimants 
were accordingly required to appear before our courts, and submit to their de- 
cisions, agreeably to our principles of law, and to the precedents afforded by the de- 
cisions of our courts, the liberality of which has not been questioned. We offered to 
pay Mexico fifteen millions of dollars, and to take upon ourselves the indemnifica- 
tion of our own citizens for injuries received from Mexico before the M^ar. This 
was a pure gratuity, as the territories for which it was nominally given were al- 
ready in our possession ; and any other nation would have required from Mexico 
the payment of a much greater sum for the ransom of its capital, and the other 
portions of its territory which were also in our hands. With these terms Mexico 
should be contented ; and if the claims of her empresarios be just, she should dis- 
charge them herself. Such was probably the view of the Senate, which refused 
all responsibility for them on the part of the United States. 

It should be also observed, with regard to this portion of the Protocol, tha* 
it distinctly revives a portion of the expunged article, which could not fail to occa- 
sion great embarrassment. What is Texas ? What are its boundaries on the south 
and west? What were they before the 2d of March, 1836? What were they 
during the interval between that day and the 13th of May, 1846 ? Did the Mexi- 
can Government make any grants of lands during this interval in the territories 
east of the Rio Bravo, (or Rio Grande ;) and, if so, are they to be admitted as 
valid on proof of the fulfilment of the conditions, or to be rejected as void ab 
initio ? The right of Texas to the whole territory east of the Rio Bravo has been, 
indeed, asserted by President Polk, in his message to Congress of December 8, 
1846 ; and in support of this assumed title, our troops had been sent to the Rio 
Bravo in March previous. But this right is not, nor can it ever be, sustained by 
proois ; and the limits of Texas on the west and south are, to this day, not de- 
termined, either by decision of our National Legislature, to which the right of 
settling the question is reserved exclusively by the terms of admission of Texas 
into the Union, or by the Treaty of Peace with Mexico, which, as ratified, makes 
no special mention of Texas in any of its articles. This consideration may also 
have contributed to induce the Senate to expunge the tenth article ; and it should 
have rendered our Commissioners careful to do nothing which might tend to prejudge 
a question so important, or at least to increase the difficulties of its solution. 

The suppression of this tenth article formed probably one of two principal ob- 
jections on the part of Mexico to the treaty as amended by our Senate ; as many 
of the most influential persons in that country are known to be interested, directly 
or indirectly, in the grants to which the article referred ; and the terms of the 
Protocol were well calculated to revive their expectations of advantage from them. 
The other principal objection to the treaty arose from the suppression of a part 
of the twelfth article. That article provided for the payment of fifteen millions 
of dollars by the United States to Mexico, of which three millions were to be de- 



12 

livered immediately on the ratification of the treaty by the latter, and the remainder 
in annual instalments of three millions each, with interest at six per cent. The 
money was to be paid in gold or silver coin of Mexican stamp, in the city of 
Mexico, on the anniversaries of the ratification of the treaty ; the whole interest 
on each instalment being paid with it. 

Such were the terms of the payments, according to the twelfth article, as ratified 
by our Senate. The original article, however, contained in addition a clause pro- 
viding for the delivery of certificates for the said instalments, in such sums as the 
Mexican Government should desire, which certificates were to be transferable by 
that Government at its pleasure. This provision was entirely expunged by our 
Senate, for reasons which, though not yet given to the world, are so numerous and 
obvious that they must at once present themselves to the mind of every one. That 
clause would have enabled the Mexican Government, immediately, to obtain the 
whole of the millions payable by us in twelve years at a cheap rate ; and it is 
needless to say wliat would have been the consequences to the United States. 
The suppression of the clause not only gave greater security for the fulfilment of the 
obligations of the treaty by Mexico, and for the continuance of the peace between 
the two nations, but it also removed the temptation for a renewal of those melan 
choly violations of law and order so frequent in Mexico, which would have been 
aff'orded by the facility for misappropriation of the sums payable by the United 
States, and obtainable immediately by the sale of the proposed certificates. The 
suppression was, in fact, no less beneficial to Mexico than to the United States. 
The provision that the money should be paid only in the instalments and on the 
days appointed, and only in the capital of Mexico, rendered the anticipation of any 
instalment payable at a distantperiod extremely difficult, if not wholly impracticable 5 
for capitalists, very properly designated by Mr. Buchanan as a" timid race" would 
never advance their funds on a contingency so improbable as the duration of the 
power of the party engaging to redeem such an obligation, until the day when it 
should become redeemable. 

Our Commissioners were, on this point also, instructed to urge the ratification 
of the treaty as amended by our Senate ; though they were at the same time in- 
formed by Mr. Buchanan that " that enlightened body would not probably insist on 
those amendments if it should appear that they involved the question of peace or 
war ;" and they were furnished with official evidences of the debt in exact con- 
formity with the treaty as amended, but not transferable or negotiable, which 
they were authorized, if it should become indispensable, to deliver, and on which 
it was " believed that the Mexican Government miglit raise the means necessary 
for their immediate support." The Commissioners were, as already said, authorized 
by a special power, granted on the 22d of March, 1848, to negotiate and conclude 
a new treaty wiih Mexico, changing the mode of payment as settled in the twelfth 
article of the Treaty of Peace ; being required, however, by their instructions of 
the same date, not to conclude such a new treaty until the Mexican Government 
" shall have first ratified the original treaty with all the amendments adopted by the 
Senate ;" and the new treaty which might be thus concluded was to be approved 



13 

and ratified byMexico, and sent to Washington for approval by our Senate and ratifi- 
cation by our President, in order to give it effect. Whether or not the Commis- 
sioners exhibited this power to the Mexican Government, or entered into any ne- 
gotiation on the subject, we know not : it certainly does not appear that they 
concluded any new treaty with Mexico after the ratification of the Treaty of Peace 
by that Power, though they did admit the insertion into the Protocol of the follow" 
ing passage in addition to those already quoted : 

"3(3. The flovcrnment of tho United States, by suppr^issiiig the concluding paragraph of article 
twelfth of the treaty, did not intend to deprive the Mexican Republic of the free and unrestrained 
faculty of ceding, conveying, or transferring, at any time (as it may judge best) the sum of twelve 
millions of dollars, which the same Government of the United States is to deliver in the places 
designated by the amended article." 

This portion of the Protocol is more nearly consonant than any other with the 
letter of the Secretary of State to the Mexican Minister of Foreign Affairs, and 
with his first letter of instructions to the Commissioners, both of which do tend 
to encourage the expectation that the United States would honor the draughts of the 
Mexican Government in favor of other parties, at the time and place appointed for 
the payment of the instalments by the terms of the twelfth article of the amended 
treaty, and perhaps even that those draughts might be accepted by our Government 
before they became payable. The second power, and the instructions accompany- 
ing it, however, seem no less clearly equivalent to a withdrawal of this encour- 
agement, by requiring the conclusion and ratification of a new treaty, in order to 
effect any change in the mode of payment already adopted in the amended Treaty 
of Peace. Certainly the explanation given by the Commissioners in the third 
article of the Protocol is entirely out of the limits of their powers, which are 
exact and specific. Under whatsoever authority this explanation may have been 
made, if it can be construed as a declaration of our readiness to pay either of the 
instalments, or any part of either, to and upon a receipt from any other than the 
member or members of the Government of the Mexican Republic, established in 
the city of Mexico on the days appointed in the Treaty of Peace, who are legally 
competent to receive the money and to give such receipts, it is null and void, as 
being at variance with the letter and spirit of the treaty, and made by persons not 
authorized to offer it. 

These are the explanations, or engagements as they might more properly be 
styled, made by our Commissioners, and recorded in the Protocol, which con- 
cludes as follows : 

"And these explanations having been accepted by the Minister of Foreign Affairs of the Mexi- 
can Republic, he declared, in the name of his Government, that, with the understanding conveyed 
by them, the same Government would proceed to ratify the treaty of Guadalupe, as modified by the 
Senate and Government of the United States. 

"In testimony of which their excellencies, the aforesaid Commissioners, have signed and 
sealed, in quintuple, the present Protocol. "Nathan Clifford, 

"Ambrose H. Sevier, 
"Luis de la Rosa." 

Now, this is certainly something more than a mere memorandum of conferences. 
It is a record of promises and engagements declared to be made in the name of the 
Government of the United States, and in virtue of full powers received from that Gov- 



14 

ernment; and if such full powers could be produced, it would be difficult to prove 
that this Protocol is not, in all respects, a treaty or convention, in the first of the 
three stages through which every compact between the United States and Mexico 
must pass, agreeably to the constitutions of both nations, before it can bej^binding 
on either. This Protocol has been by some assimilated to the conditional ratifi- 
cation given by Bonaparte when First Consul of France to the treaty of 1800 with 
the United States : but this assimilation is defective in the most essential points ; 
for the alteration required by Bonaparte is declared at length in the ratification 
itself; and the treaty ratified with this condition, was again submitted to our Sen- 
ate, which approved it, and was ratified by our President ; so that the change was 
in all respects established in the treaty itself. The Protocol of May, 1848, on 
the contrary, though signed and sealed by the plenipotentiaries of both nations 
who exchanged the ratifications of the Treaty of Peace, is in no way noticed in 
that treaty, which was completed by the ratification of the Mexican President, 
containing no allusion to any modification or explanation of the terms of the com- 
pact. The Protocol more nearly resembles the additional articles to our treaty with 
Great Britain of 1794, (well known as Jay's treaty)— explanatory of certain points 
which were found to be not stated with sufficient distinctness for their fulfilment 
in that treaty. But these additional articles were each negotiated under special 
powers to that effect, and were approved and ratified by the two Governments, 
as if each had been a separate treaty. 

In recapitulation of what has been here said, it has been shown — 

1. That our Commissioners had no powers to negotiate on any of the points to 
which the Protocol refers, except as to the mode of payment of the twelve millions, 
on which, however, they could conclude nothing until the Treaty of Peace, as amended 
on our part, had been ratified by Mexico. 

2. That the explanations and assurances given by our Commissioners to the 
Mexican Government are in direct opposition to the sense of the Treaty of Peace, as 
clearly and unequivocally shown by its terms. 

3. That the treaty was ratified by the Mexican Government, without any pro- 
test, exception, or objection whatever, in its act of ratification, to any part of the 
treaty. 

4. That the ratification was given by the Mexican Government with the full and 
certain knowledge, on its part, of the exactness of the first and second of the above 
propositions. 

5. That the Mexican Government confirmed its assent to the treaty by imme- 
diately afterwards accepting the first instalment of three millions of dollars, made 
payable to it by the United States under the twelfth article, and by other acts in 
accordance with other stipulations of the same. 

If these propositions be admitted— and no grounds can be seen for impugning any 
one of them in any way— it follows necessarily that Mexico is bound to the obser- 
vance of the treaty in all respects, by every principle of national law and national 
honor ; and the United States are equally justified in disregarding the interprets- 



15 

tions to which their Commissioners assented, in signing the Protocol without any 
power or authority to do so, and in express contravention of their instructions. 

Here we might end the examination of this question; it is, however, proper to 
add some observations as to the conduct of our Executive after the ratification of 
the treaty. The Protocol was, on its face, an engagement made by American Pien- 
ipotentiaries, duly appointed by the President and approved by the Senate, and 
acting under full powers in the name of their Government, binding the United 
States to execute the Treaty of Peace according to a particular sense. Whether 
this engagement was valid or not, President Polk could have had no doubt that the 
Mexican Government would insist upon its validity, and that it might in time be- 
come the subject of a contest between the two countries ; and it was therefore his 
duty to communicate it, without delay, to the branch of our National Legislature 
which is charged, in conjunction with the President, to regulate our intercourse with 
foreign Governments, and oversee the conduct of those who are commissioned 
as agents for that purpose. This he, however, did not do; "because," as he 
says, most strangely indeed, in his message of February 8, he " did not regard it 
as material, or as in any way attempting to modify or change the treaty as it 
had been amended by the Senate of the United States''— zn opinion in which it is 
believed that no other citizen of the Union, who examines the document critically, 
will be found to concur with him. It was, moreover, his duty frankly to declare 
to the Mexican Government, without delay, our intention to execute the treaty and 
to have it executed by Mexico, only according to its true and clearly expressed 
sense, any explanations of our Commissioners to the contrary notwithstanding ; 
and on this point we shall conclude by quoting from Vattel a passage which bears 
almost directly upon it : 

"A State cannot be bound by an agreement made without its order, and without its having 
granted any power for that purpose. But is it absolutely under no obligation ? This is what we 
are now to examine. If things are in their first situation, the State or the Sovereign may disown 
the treaty, which falls by this disavowal, and is as if it had never been. But the Sovereign ought 
to manifest his resolution as soon as the treaty comes to his knowledge ; not, indeed, that his si- 
lence alone can give validity to a convention that cannot have it without his approbation ; but it 
would be unjust for him to give time to the other party to execute on his side an agreement which 
he would not ratify." 

However invalid might be the explanations and assurances recorded in the 
Protocol, from their nature and the circumstances under which they were made, 
they were given by the Plenipotentiaries of our Government, and regard for our 
national honor required a prompt and decided disavowal of their imprudent if not 
illegal conduct. 









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